Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA337771, Kathleen Kennedy-Powell, Judge.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Saul Mejia appeals from the judgment entered following a court trial which resulted in his conviction of continuous sexual abuse of a child under 14 years of age (Pen. Code, § 288.5, subd. (a)). The trial court sentenced Mejia to 12 years in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Ivan T. was born in November 1982. From 1993 to 1997, Mejia was Ivan T.’s mother’s boyfriend. He lived with Ivan T. and Ivan T.’s mother during that time. In 1993, when Ivan T. was 11 years old, Mejia hugged him in a way that made Ivan T. uncomfortable. On another occasion, Mejia had Ivan T. touch him on his back and “[h]is butt.” Later, when Ivan T. was 12 and 13 years old, Mejia had Ivan T. touch him on his penis. Mejia would then put his penis in Ivan T.’s mouth. This happened on four or five different occasions. On yet another occasion, Mejia sodomized Ivan T. Ivan T. remembered that Mejia had him face a wall. Then, while standing in back of him, Mejia pulled down Ivan T.’s pants and boxer shorts and put his penis into Ivan T.’s anus.
Los Angeles County Sheriff’s Detective Sean Vanloeuwen is assigned to the special victim’s bureau and was the investigating officer on this case. As part of his investigation, on March 14, 2008, the detective interviewed Mejia. After the detective advised Mejia of his rights pursuant to Miranda, Mejia effectively admitted having had sex with Ivan T. Mejia admitted having had the victim orally copulate him and that he had put his penis in the victim’s anus. Mejia remembered sodomizing Ivan T. on Ivan T.’s 11th birthday. When the detective asked Mejia if he had orally copulated the victim, Mejia replied, “No.” When he was asked why he had not done so, Mejia replied, “ ‘Well, I am not gay.’ ” Mejia indicated that he engaged in acts of sodomy and oral copulation with Ivan T. on an almost daily basis. Most of the incidents occurred in the bedroom, although some were performed on the living room couch or in the bathroom.
Miranda v. Arizona (1966) 384 U.S. 436.
2. Procedural history
Mejia was charged by information with one count of continuous sexual abuse of a child under 14 years of age (§ 288.5, subd. (a)) and one count of sodomy (§ 286, subd. (b)(2)). After hearing the evidence at proceedings held on December 16, 2008, the trial court determined that the count alleging sodomy merged with the count alleging continuous sexual abuse. Accordingly, the trial court dismissed the count alleging sodomy.
Based on the evidence presented, the trial court found Mejia guilty of the continuous sexual abuse of a child under 14 years of age in violation of section 288.5, subdivision (a). The trial court then ordered that a probation report be prepared and, with Mejia’s and counsel’s acquiescence, scheduled sentencing proceedings for February 5, 2009.
At the hearing held on February 5, the trial court indicated it was in possession of a probation report and a “static 99 assessment report.” However, before the trial court sentenced Mejia, defense counsel indicated he wished to address the court. With the court’s permission, counsel stated: “[A]fter the trial I had a question about—I did not ask any questions of this victim. The reason I didn’t do that is because based upon my conversations with Mr. Mejia, Mr. Mejia’s two pretty incriminating statements he made here in open court before this judge, and based on the testimony of the victim, I really didn’t have anything to ask him. But I am beginning to second guess myself. [¶] Sothis morning I spoke to Mr. Mejia and explained to him that he has a right to file what’s called a motion for new trial if he wanted to question my performance at trial. And I explained that to him. He understood it. And he said no, he didn’t want to do that; he wanted to proceed with sentencing.”
When the trial court then asked Mejia if he was prepared to proceed with sentencing, Mejia responded, “I just want to know what is going to happen.” After Mejia indicated that he had “nothing” further to say, the prosecutor urged that the maximum sentence of 16 years was warranted in this case. The prosecutor argued that Mejia took advantage of a position of trust, that “there are some mental health issues with [the] victim” and Mejia took advantage of “[that] particular vulnerability,” that the crime “involved... a high degree of cruelty and callousness,” and that the abuse occurred “on an almost daily basis.” The prosecutor believed the conduct “as described by the victim [was] substantially minimized.” The prosecutor continued, “I think the court can take into account the statements made by the defendant and, as testified to by Detective [Vanloeuwen], mainly that the defendant had sodomized the victim or had the victim orally copulate his penis on an almost daily basis after the victim’s 11th birthday which would have been November 3rd, 2003, continuously until 2007.”
Ivan T. has apparently been hospitalized for psychosis.
Defense counsel argued that Mejia did not hold a position of trust with regard to the victim. He had “access” to the victim, but was not the victim’s father. With regard to the issue of great bodily harm, counsel argued “there was no harm inflicted beyond the actual harm inherent in the crime itself, which [he thought was] already considered in the penalty range that the court [was] given; that [was] factored into that.” Accordingly, counsel requested that the low term be imposed.
The trial court sentenced Mejia to the mid-term of 12 years in state prison. The court stated: “I am not down playing the seriousness of the crime; I think it is a serious crime. However, the defendant does not have any prior record, and I am taking that into account....”
Mejia was given presentence custody credit for 330 days actually served and 15 percent, or 49 days, of good time/work time, for a total of 379 days. He was ordered to pay a $2,400 restitution fine (§ 1202.4, subd. (b)), a stayed $2,400 parole revocation restitution fine (§ 1202.45), a $300 sex crime registration fine, a $20 court security assessment (§ 1465.8, subd. (a)(1)), and a $30 felony conviction fine.
Mejia filed a timely notice of appeal on March 9, 2009.
This court appointed counsel to represent Mejia on appeal on June 17, 2009.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed October 6, 2009, the clerk of this court advised Mejia to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v, Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.